educational freedom – Homeschoolers Anonymous

The Fundamental Reality of The Family Is Not Just Amorphous “Rights” Language

September 28, 2013May 11, 2020HA Editorial Team2 Comments

The Fundamental Reality of The Family Is Not Just Amorphous “Rights” Language, By Virgil T. Morant

Virgil T. Morant is a lawyer in northeastern Ohio. He practices civil litigation and criminal defense, as well as corporate law, and his work includes representation of clients in disputes over education and child custody. He is also a member of the International Law Section of the Cleveland Metropolitan Bar Association. His personal blog is Lasseter’s Lost Reef.

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“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

That’s article 16(3) of the Universal Declaration of Human Rights, one part of the International Bill of Rights from the United Nations. While one does not need an especially fertile imagination to think of a good many people whose disdain for the U.N. (or suspicion at the least) would give little consideration to the authority, and while ordinary people don’t typically go around citing U.N. resolutions, that statement transcends legal controversy or political debate: it states a principle that is widely shared.

It is not just a statement about the organization of society: it is an affirmation of how people generally feel about the dignity and centrality of home and family. Indeed even many of those who likely would have no truck with the United Nations and no love for International Law virtually quote that article word for word every day when they’re arguing about matters of home and family, and probably most of them scarcely even realize it. When we talk about rights, however precisely or imprecisely, we are talking about things that people feel very deeply about, things that give their lives meaning and purpose.

That quote right there about the family says it.

Now, in ordinary speech as well as the commonplace discourse of journalists and editorialists (“bloggers” too of course), any talk of rights is inevitably amorphous and indicative more of feelings and desires than it is of well-defined or cognizable rights. So, frequently when someone says that a right has been violated, what he really means is that he has been offended in some way. In everyday speech, and even in garden-variety “professional” commentary, that is fine—people who are talking casually or writing frequently will resort to such boilerplate, and there is little sense in crying about it—but, if we wish to step away from casual usage, we are likely best served by using the language of rights in two ways: (1) if the right is legally cognizable, then by reference to the authority that defines it or (2) if we are making a case for a right, then by setting out our definitions, argument, and authority.

In his recent article, R.L. Stollar—who graciously invited me to write my reply to him as a guest post—actually used precisely these methods in order to make the case that homeschooling was not a right. Turning, however, to the authority he used and considering his argument, I have to disagree with his conclusion.

The chief authority Mr. Stollar uses is Article 26 of the Universal Declaration of Human Rights (UDHR). After the prior sections of that article deal with an individual’s right to an education, what level of education should be mandatory, and some discussion of the social purposes of education, UDHR art. 26(3) states, “Parents have a prior right to choose the kind of education that shall be given to their children.”

As I noted in my comment to Mr. Stollar’s post, this language both gives a priority to parents in the determination of their children’s education and states it in terms of an act that is compelled: the children shall be educated, and the parents have the prior right to choose the kind of education. Some portion of Mr.Stollar’s post got bound up in the notion that a human right cannot be controlling over another person, but the very language he quoted seems to dispel that by granting parents what it unambiguously calls a right to make determinations for other human beings (parents choosing for their children).

On top of this, it is not difficult to think of a number of other rights that involve and even require the cooperation, restraint, or compulsion of other human beings.

I noted the right to counsel in criminal proceedings in my comment on his post. How about also the right to reasonable working hours (UDHR art. 24), which places limits on how much an employer can demand of his employees and requires him to provide reasonable leave, or the right to one’s reputation (UDHR art. 12), which limits freedom of speech from, say, defamation? These are just two examples.

Rights place obligations upon the state to vindicate them, but they also often entail a restraint on individual human beings as well as granting the capacity for one human being to impose restraint upon another (as in parents making decisions for their children) or to seek redress for a violation (as when one sues for defamation).

If we want to look to concrete authority to argue whether homeschooling is a right, by the way, why stop with the UDHR?

Both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESC) make favorable reference to the “liberty of parents.”

They, together with the UDHR, belong to that International Bill of Human Rights mentioned above. Consider the full language of ICESC art. 13 ¶ ¶ 3-4:

3. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities, which conform to such minimum educational standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions.

4. No part of this article shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principles set forth in paragraph I of this article and to the requirement that the education given in such institutions shall conform to such minimum standards as may be laid down by the State.

Paragraph 3 states its “respect” for parental liberty in school choice—even choices besides public school—and paragraph 4 puts some teeth to this by forbidding the instrument from being interpreted to interfere with the individual’s liberty to establish educational institutions. Make of that what you will.

If, then, what remains of the argument against homeschooling being a right comes down to the travel by horse analogy (see Mr. Stollar’s essay for this), then my response is:

Traveling by horse, if you have one, actually is a right, and it falls within the right to freedom of movement.

Of course it is not a right to take someone else’s horse or to be given a horse, but the right to travel is one primarily cognizable in not being restrained from travel, and surely no state should have the right to stop you, under normal circumstances, from hopping on your horse and going where you will. Just the same, if a parent has a right to determine his child’s type of education, and, if we are agreed that whatever form of homeschooling we are talking about is a legitimate type of education, then surely the parental right includes the right to school the child at home.

Of course, at some point in narrowing rights down to specific examples, it would become absurd to insist that they all be found in a United Nations convention. But a good many of the things we value as rights (in some proper sense of the word) are actually spelled out in writing in statutes and case law, which constitute an overwhelming number of words and pages. If there is any uncertainty about whether something should be legally protected—such as the right to school one’s children at home—then off to court one goes, where lawyers will find the citations and make the arguments.

It’s all quite entertaining for pundits and ordinary people to complain about “rights” being violated, but rights don’t mean much of anything in a society of laws until their existence is tested and proven through law.

Sometimes too, by the way, the universality of a norm is well demonstrated by the states that violate the norm against the greater consensus. So, however the current business in Germany, for instance, shakes out, and whatever may be adjudicated in the Unites States or anywhere else, for my own part, I just cannot fathom educating one’s children at home as not being a right—or, if you prefer (but I think this is hair-splitting), as squarely fitting within the right to choose the education of one’s children.

We get emotional about our rights. We get emotional about these homeschooling rights in particular, because, as with any human liberty, they are subject to abuse, and by “abuse” I mean to say the kinds of acts that take us squarely outside the realm of rights. The abuses of homeschooling are famous in the portion of the blogosphere where I am writing now. And then there is the hazy realm of, let’s call it, “indoctrination”: why, with some of the more scandalous examples of homeschooling, what sorts of things are they teaching those children! A false history or poor science or just a pathological contempt for this segment of society or that or for society on the whole, perhaps?

Let’s don’t forget, though, even when children go to public schools, their primary role models remain their parents. Even when children go through their rebellious phases, reckon themselves independent and free-thinking as adolescents will do, if they live in a home with parents, their parents are their principal models of how life is. Their chief guides, even if the parents don’t know it or don’t want it. No one can jack you up worse early in life than mom and dad, and nobody can guide and protect you better either.

The family is the natural and fundamental group unit of society.

That’s not just legal jargon, and it’s not just amorphous “rights” language. It’s the fundamental reality of parents and their children.

I Love Homeschooling, But Homeschooling Is Not A Human Right

September 27, 2013May 11, 2020HA Editorial Team9 Comments

I Love Homeschooling, But Homeschooling Is Not A Human Right, By R.L. Stollar

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Let’s get a few things out of the way first.

First, I generally enjoyed being homeschooled from K-12. Homeschooling is no panacea, but it was a generally positive experience for me personally. Second, I am all about human rights. Since studying human rights theories in high school and college for academic debate, I have desired to understand human rights, understand how to promote them, and defend others when their rights are being attacked.

Third and finally, I am not a fan of Germany’s almost-ban on homeschooling. (“Almost-ban” because Germany does, in fact, allow homeschooling for families of sick children or families that travel significantly.) As an American and a former homeschooler, it rubs me the wrong way.

But.

But Germany’s almost-ban on homeschooling is not a violation of the fundamental, human right to homeschool. Because there is no such human right. It does not exist.

There is no fundamental, human right to homeschool, peoples.

Now before you raise the pitchforks, throw the stones, and shout “Kill the beast!,” hear me out. And while you hear me out, re-read the three things I started with. When I say there is no fundamental, human right to homeschool, I say that as (1) a fan of homeschooling, (2) a human rights advocate, and (3) a critic of their almost-ban on homeschooling.

So put down those pitchforks and stones and save “Kill the beast” for a Disney movie and let’s talk about some basic human rights theory.

Defining Human Rights

Human rights are things — usually freedoms — that are guaranteed to you simply because you are a human.

These rights assume that every human being — whether male, female, adult, child, gay, straight, black, white, and so forth — is a moral and rational being who deserves dignity and respect. Because of this, these rights are universal. Whether or not the government that you live under chooses to respect these rights, you still have them. They are indivisible.

There have been many articulations of rights people have — ranging from the Magna Carta to the Bill of Rights. Each of these articulations have dealt with different types of rights — natural, civil, and so forth. The concept of human rights arose after World War II and the Holocaust. When the United Nations was created in 1945, governments wanted to create a contract between each other to avoid similar international horrors in the future. The result of this was the UN’s Universal Declaration of Human Rights (UDHR) in 1948. It delineated thirty fundamental rights that people everywhere should be guaranteed.

You can read a simplified version of the thirty rights from the UDHR here, or the full text of the UDHR here. What you will observe in the declaration are universal concepts of ethics: no slavery, no torture, no unfair detainment, the right to privacy, freedom to move, freedom of expression, right to education, and so forth.

Classifying Human Rights

Now you might wonder, What qualifies a right to be a “human” right?

This is a highly debatable matter, and people everywhere — including human rights theorists — disagree on this all the time. But most people agree with either one of the following two key frameworks:

(1) International, high priority, and require robust justification

Human rights are both international and high-priority norms that require robust justifications that apply everywhere and support their high priority. They need to be so international and so high-priority so that they can actually be justified as binding on every nation everywhere in relationship to every single human being. They need to transcend cultural diversity and national sovereignty.

This is why in most human rights treaties and declarations you see abstract and universal concepts rather than precise particulars. We can all — theoretically — agree that freedom of speech is a human right. But what about the freedom to make porn? That is a very specific freedom that will not hold up against the standard of cultural diversity and national sovereignty. The more specific you get in defining a human right, the less binding it is.

(2) Universal, indivisible, interdependent, and interrelated

The four main standards for what are human rights are (1) universality (applies to all human beings), (2) indivisibility (inherent to human beings qua human beings), (3) interdependency (each right depends on the others), and (4) interrelatedness (each right enhances the other rights). Put together, this means that “all rights are equally important and necessary in creating a strong and healthy society.”

If a particular right is not as equally important and necessary as other rights in creating a strong and healthy society, then it is not a human right. It can be a civil right or a political good or a privilege, but it is not a human right.

Freedom of Movement Versus Freedom to Move By Horse

Let us look at a particular example: freedom of movement.

Freedom of movement is a human right.

What are some ways in which one could move? You could move by foot, by car, by train, by boat, by plane, by horse, and so many other ways.

Is travel by horse a human right?

No. Freedom of movement is a human right. But movement by horse is not a human right. Protecting the former is an international high priority. Protecting the latter is not. Furthermore, protecting movement by horse would be protecting a particular vehicle for achieving a general right, but not the general right itself.

It is the same with homeschooling.

The right to education and the right to educational freedom are both human rights, according to Article 26 of the UDHR:

Everyone has a right to education… Elementary education shall be compulsory… It shall promote understanding, tolerance and friendship among all nations, racial or religious groups… Parents have a prior right to choose the kind of education that shall be given to their children.

What are some ways in which one could educate or be educated? You could be educated by public schools, private schools, home schools, tutors, co-ops, and so many other ways.

Is education by homeschooling a human right?

Like travel by horse, homeschooling is not a human right. But like freedom of movement, educational freedom is.

Furthermore, you must keep in mind that human rights are inherent to individuals as individuals.

You cannot have a human right to another individual.

So while one can argue that homeschooling should be considered a parental right, it cannot be a human right because no individual has human rights to another person. You have the human right of movement, but not the human right to make another person move.

This is the inherent balance contained within Article 26: the right of a child to an education, and the right of a parent to follow his or her conscience regarding their child’s education. These need to be balanced. So if homeschooling has a potential to interfere with the human right to an education (of the child), then it cannot itself be a human right.

One can certainly argue that homeschooling is such an important vehicle for preserving the human right of educational freedom, that banning homeschooling is a violation of educational freedom. But educational freedom is the human right, not homeschooling.

Human Rights Inflation

To say homeschooling is the human right confuses and conflates categories.

But it does more than confuse and conflate. It also inflates. A vital aspect of human rights as international policy is that the list of human rights — as stated in treaties — has currency. In other words, the stated human rights actually mean something. So when one country violates them, other countries are rightly in an uproar. Violate freedom of religion and that is a big deal.

The more “rights” you add to the list of human rights, the less that list means.

It loses currency. Once you start adding things like “right to travel by bus,” “right to travel by car,” “right to travel by donkey,” “right to travel by cat,” it diminishes the impact and value of “right TO freely move from one place to another.”

This is called human rights inflation.

What HSLDA and other likeminded homeschool advocates are pushing for, this adding of homeschooling to the list of human rights, is guilty of that very thing.

They are contributing to human rights inflation. They are not alone, mind you. This is a problem that human rights theorists and politicians and international policy experts have wrestled with for years now. According to Foreign Affairs, there is “a gross inflation in the number of human rights treaties and nonbinding international instruments adopted by international organizations over the last several decades.” This is because “Human rights once enshrined the most basic principles of human freedom and dignity; today, they can include anything.”

Why this is a problem is succinctly expressed by the Spectator:

[When people translate] any and all grievances and demands into the language of ‘rights’, they are causing an inflation of the whole concept… The result is that at some point there will be a collapse of the whole system… If living in a one-bedroom flat is now to suffer a fundamental human-rights abuse, how [does one] get remotely exercised about the gassing of children or the desolation of whole nations?

Please Stop Calling Homeschooling a Human Right

As much as I value homeschooling and dislike Germany’s almost-ban on it, I consider it fundamentally irresponsible to set forth homeschooling as a human right. Just, no. No, no, no. I do not say this because I hate homeschooling. I would say this same thing about any number of other thinkers and advocates who set forth particular vehicles for achieving general rights as actual rights themselves. This does a disservice to rights language and only serves to undermine the vehicles one wants to protect.

If HSLDA and other likeminded homeschool advocates want to champion the actual human right of educational freedom, then by all means — go for it.

HSLDA, champion the Universal Declaration of Human Rights and Article 26.

Champion all aspects of that declaration and all aspects of that Article’s expressed human right, including compulsory education. Champion the child’s right to receive a good education. And also champion the parent’s right to direct what sort of education a child gets. But you cannot pick one part of a human right and then disregard the other parts.

Article 26 is about the right to education and the right to educational freedom. It is not about homeschooling.

Saying otherwise is how you play cultural warrior, not how you play human rights advocate.